Benjamin and Benjamin

[2016] FCCA 3497

FEDERAL CIRCUIT COURT OF AUSTRALIA

BENJAMIN & BENJAMIN [2016] FCCA 3497

Catchwords:
FAMILY LAW – Urgent application for recovery order for two of the three children of the relationship retained by father – undefended hearing.

Legislation:

Family Law Act 1975, ss.60CB, 60CC, 60CG, 67B, 67T, 67Q, 68B

Mental Health (Forensic Provisions) Act1990

Applicant: MS BENJAMIN

Respondent: MR BENJAMIN

File Number: PAC 3622 of 2016

Judgment of: Judge Obradovic

Hearing date: 16 August 2016

Date of Last Submission: 16 August 2016

Delivered at: Parramatta

Delivered on: 16 August 2016

REPRESENTATION

Appearing for the Applicant: Ms Morrison

Solicitors for the Applicant: Mahony Family Lawyers

Appearing for the Respondent: No appearance

ORDERS

1. Leave is granted to the Applicant’s solicitor to view material produced on Subpoena from Dr P.

2. Leave is granted to the Applicant to file in Court today an Affidavit sworn by her 16 August 2016.

3. Pursuant to Section 67Q of the Family Law Act 1975:

   TO: The Marshal of the Federal Circuit Court of Australia

   All Officers of the Australian Federal Police

   All Officers of the State and Territory Police Forces of Australia

   You are authorised and directed with such assistance as you require and if necessary by force, to find and recover the children Y born (omitted) 2007 and Z born (omitted) 2005.

   You are required to deliver the said child to the Applicant Mother at a place nominated by the Officer who recovers the child pursuant to this Order.

   The Marshal, all Officers of the Australian Federal Police and all Officers of the State and Territory Police Forces of Australia be permitted to provide to the Applicant any address provided under a location order if necessary to enable the Applicant to collect the children.

   The Applicant is to pay any associated travel costs of the children’s return.

   For the purposes of finding and recovering the said children you are authorised and directed, with such assistance as you require, and if necessary by force to stop and search any vehicle, vessel or aircraft and to enter and search any premises or place in which there is, at any time, reasonable cause to believe that the said child may be found.

   If Mr Benjamin again removes the said children from the Applicant pursuant to orders made herein on 16 August 2016 he/she may be arrested without a warrant.

   This Order remains in force for a period of twelve months.

4. The father is restrained from again removing the children from the mother or from causing or permitting any other person from doing so.

THE COURT FURTHER ORDERS, PENDING FURTHER ORDER THAT:

1. Pursuant to s.68B of the Family Law Act1975, the father is restrained from coming within 100 metres of the mother’s premises or schools attended by any of the children noting that this is an order for the personal protection of the mother Ms Benjamin born (omitted) 1970 and each of the children X born (omitted) 2003, Y born (omitted) 2007 and Z born (omitted) 2005.

2. The children X born (omitted) 2003, Y born (omitted) 2007 and Z born (omitted) 2005 live with the mother.

THE COURT FURTHER ORDERS THAT:

1. The proceedings are adjourned for directions at 11.30am on 28 October 2016.

IT IS NOTED that publication of this judgment under the pseudonym Benjamin & Benjamin is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 3622 of 2016

MS BENJAMIN

Applicant

And

MR BENJAMIN

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for a recovery order within the meaning of section 67Q of the Family Law Act1975 with respect to two children:  Z born (omitted) 2005, aged 11 years, and Y born (omitted) 2007, aged nine years.  By Initiating Application filed 5 August 2016, the mother sought orders for the proceedings to be listed at short notice, such application being granted by Registrar Kimmorley on 5 August 2016.  The matter comes before the Court today on an urgent basis.  

2. The Initiating Application together with the documents in support and the Affidavit of the mother filed on 5 August 2016 were served on the Respondent father personally on 10 August 2016.  There was no appearance by the Respondent father at the hearing of the application today and consequently, the matter was dealt with on an undefended basis. 

Documents relied upon

1. The mother relied upon the following documents:

   a)Initiating Application filed 5 August 2016;

   b)Affidavit of Ms Benjamin sworn and filed 5 August 2016;

   c)Affidavit of Ms Benjamin sworn and filed 16 August 2016;

   d)Notice of Risk filed by the mother on 5 August 2016; and

   e)Affidavit of service of Ms L filed 15 August 2016.

2. The following documents became Exhibits in the proceedings:

   a)Exhibit 1 being a text message from the father to the mother dated 14 August 2016; and

   b)Exhibit 2 being documents produced under Subpoena from Dr P marked with tags M2.1 through to M2.10. 

Evidence in the Applicant Mother’s Case

1. By way of brief background, as detailed in the evidence relied upon by the mother, the parties commenced living together in 1993.  There are three children of the relationship:  X born (omitted) 2003, Z born (omitted) 2005 and Y born (omitted) 2007.  The mother reports a history of domestic violence during the parties’ relationship, particularly since 2013 and set out below are some of those allegations and some of the matters contained in the Exhibits. 

2. Firstly, it is alleged that the father has pulled a knife and threatened to kill the mother by saying to her words to the effect “I will kill you” in about September or October 2013. 

3. In January 2014, the father allegedly hit the mother with a closed fist.  The children observed the violence and were crying and distressed.  After this incident, the father disclosed to the mother that he had been smoking ‘ICE’ and that this was the reason for his erratic behaviour.  Further, in January 2014, the father accused to mother of being a sex worker and he consequently put tracking devices in the mother’s car. 

4. In April 2014, the father was charged with assaulting the mother and malicious damage.  The Court Attendance Notice and the Facts Sheet are part of Exhibit ‘2’. They disclose a very serious assault occasioning actual bodily harm by the father on the mother, by not only punching her in the head repeated times with a closed fist, pulling her by the hair and punching her in the stomach, but also doing these things in front of the children. 

5. In June 2014, following this assault, the father was assessed by a psychologist for the purposes of the charges which he had to answer, that assessment also forming part of Exhibit 2. 

6. The father was diagnosed as suffering from a mental health condition under the Mental Health (Forensic Provisions) Act1990 and was identified as having the disorder in the DSM-5 as “acute stress reaction with psychotic features – paranoid delusions”. 

7. The parties separated between October 2014 and January 2015 due to the mother’s concerns about the father’s behaviour.  The father spent time with the children in public places only as arranged and agreed between the parties. 

8. In January 2015, the parties reconciled.  At this time, the mother notes that the father was sleeping with a knife under his bed and carrying a knife on him at all times.  She observed him to pull apart light fittings, kitchen appliances, children’s electronic toys, fridges and washing machines and that he was convinced that the house was “bugged”. 

9. In March 2015, the mother alleged that the father held her down and put a knife towards her face saying to her words to the effect “I will stab you 20 times”.  The father physically assaulted the mother and the matter was reported to the police.  The father was arrested and placed in the (omitted) Correctional Centre before his release into the care of the (omitted) Psychiatric Ward.  The father was admitted at (omitted) Hospital on 9 March 2015 suffering from paranoid delusions.  In June 2015, the father was convicted of assault and sentenced to a two-year good behaviour bond with a condition that he report regularly to the (omitted) Psychiatric Ward. 

10. Between June and December 2015, the father did not spend any time with the children, and it was only in December 2015 that the father commenced spending time with the children during day periods only. 

11. In February 2016, the father collected Z and Y from school without notice to the mother and without her consent.  The mother contacted the police who facilitated the children’s return to the mother.  In April 2016, after a scheduled visit between the children and the father, the father failed to return Z to the mother’s care.  The police informed the mother on this occasion that Z had expressed that he wanted to stay living with his father and as there were no Court orders in place, there was nothing the police could do on this occasion.  After he remained with the father, Z had not attended school for the last three weeks of Term 2 nor week 1 of Term 3.  As at the date of the mother’s Affidavit, being 5 August 2016, Z had still not attended school. 

12. In June 2016, X disclosed to her mother that her father had been interrogating her for hours, saying to her words to the effect “You have been molested by people in your mother’s group of friends, haven’t you?”  X was distressed and said to her mother that she is scared of the father and that she did not want to go back there ever. 

13. On 23 June 2016, the father said to the mother:  “My house is being bugged and people are following me”. On 28 June 2016, the father collected Y from school without the mother’s consent or prior notice.  On this occasion, the police assisted the mother with returning Y to her mother’s care.  On 29 July 2016, the father once again collected Y from school without the mother’s consent or prior notice.  Y has remained in the father’s care since that time. 

14. The police attended at the father’s last known address on 29 July, 30 July, 31 July and 3 August 2016, however on those occasions, they did not sight the father, nor the children.  On 4 August 2016, the police attended upon the father’s address and conducted a welfare check.  The mother commenced these proceedings on an urgent basis on 5 August 2016, and on the same day she received a text message from the father making a reference to the mother being sentenced to 25 years in jail. 

15. On 14 August 2016, the father sent to the mother text messages which read inter alia “I found all the devices in all the kids’ ears and I will get them removed” which is consistent with the father’s previous behaviour in asserting that the house was bugged and that he was being followed.  On 14 August 2016 at around 3pm, the father arrived at the mother’s house.  The door was answered by the maternal grandmother and the mother heard the father screaming, saying words to the effect “Give me X. Your daughter is going to jail. I’m not leaving without X”. 

16. The mother then went to the front door where she could see the father’s car and Y and Z in the car.  She observed the children to be crying and she was trying to push past the father to make her way outside to get the children.  The father then punched her a number of times in the face with a closed fist causing a bloodied nose and he also hit her a number of times to the chest.  The mother says that she has bruises from being hit by the father on this occasion.  The children were sitting in the car watching the father assault the mother and crying. 

17. The mother then contacted the police who arrived and an ambulance also was called to treat the mother.  At about the same time, the father’s niece, who the mother understands is called Ms J but uses the name Ms B, arrived in a separate car and took the children with her.  The father was arrested and charged by the police.  On 15 August 2016, the mother made enquiries with Fairfield Local Court and was told that the father had been taken to be mentally assessed at a hospital. 

18. The mother does not have any further information as to where the father might be at the time of the hearing of this matter today.  The children have not been returned to the mother, and the mother suspects based on what she has been told by the paternal grandmother that the children are being held by the father’s niece Ms J, also known as Ms B.  The mother consequently seeks a recovery order in relation to the children who have been retained by the father – in Z’s case, since April 2016, and in Y’s case, since July 2016. 

The Law

1. The Court is satisfied pursuant to section 67T of the Act that the Court is able to make a recovery order in support of the mother’s application and that she is at the very least a person concerned with the care and welfare and development of the child. In proceedings for a recovery order, the Court may, subject to section 67B, make such recovery order as it thinks appropriate. Pursuant to section 67B, in deciding whether to make a recovery order in relation to a child, the Court must have regard to the best interests of the child as the paramount consideration.

2. Sections 60CB to section 60CG deal with how the Court determines the child’s best interests and having regard to those relevant sections, in particular section 60CC(2) and section 60CG, the Court is satisfied based on the evidence before it that the Court should proceed to hear this matter on an undefended basis, in particular given the serious risk to the children while they remain in the father’s care. The Court finds that there is an unacceptable risk of harm to the children remaining in the father’s care at present. The Court is satisfied that recovery order being issued is in the best interests of the children.

Conclusion

1. A recovery order is made in the usual terms pursuant to section 67Q of the Family Law Act 1975. Furthermore, the Court is satisfied based on the evidence contained in the mother’s Affidavit and the Exhibits which have been tendered today that an injunction restraining the father from coming within 100 metres of the mother’s premises or the schools attended by any of the children pursuant to section 68B of the Family Law Act 1975 is also an order that is in the children’s best interest, and therefore an order is made in accordance with paragraph 8 of the Minute of Order sought by the Applicant mother.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Obradovic

Date:  16 August 2016